Not What America is About – Meeting with Defense Teams

“This is Not What America is About” was the consistent theme of the nearly two-hour session NGO Observers had with defense teams for three of the 9/11 defendants: Mr. Mustafa Ahmed Al Hawsawi, Mr. Mubarak Bin ‘Attash, and Mr. Ramzi Bin Al Shibh. Held in the NGO Lounge, a one-window room carved out of metal hangar and filled with mis-matched 1980’s college dorm and office furniture, we listened as the legal teams told of FBI spying on privileged attorney-client meetings with the use of listening devices designed to look like smoke detectors, FBI attempts to use members of the legal teams as informants, Joint-Task Force seizure and review of attorney-client correspondence, CIA control of the courtroom that lead to monitoring of conversation at the defense tables (ironically the $12 million courtroom was designed to prevent this kind of activity), and trial delay tactics. In short, as James Harrington, Learned Counsel for Ramzi Bin Al Shibh, said,  “this is not what America is about.”

Questions and answers were traded with the defense teams about the Military Commission and the process itself. Unlike the established U.S. federal court system, the Military Commission is a new process and every issue is subject to briefing and arguments; and a ruling by Colonel Judge James L. Pohl. James Harrington described the situation as such, it is a “process set up for a particular goal, when rules don’t achieve [that] goal, the rules are changed.” Despite evidence that terrorists can successfully be tried in Federal courts (e.g.,  Sulieman Abu Ghaith, Osama bin Laden’s son-in-law) the Military Commission process appears at this point in time to be what we stuck with.

Defense Counsel Wearing Hijab

Learned Counsel Cheryl Bormann, who represents Mubarak Bin ‘Attash, also noted the disparate resources made available to the defense teams. For example, her team has not been assigned an investigator. Ms. Bormann wears a hijab during meetings with her client and court proceedings. She explained that she wears hijab to establish rapport with her client. There was a definite undercurrent of a difference of opinion among the defense teams as to whether the wearing of the hijab will create an unfavorable impact with the judge and jury (panel) when and if the 9/11 case ever gets to trial.

The Torture Report

The Torture Report also featured in the discussion. During this discussion, defense counsel reported that they have never seen the detention camp where their clients are held. The defense teams, along with others, are seeking release of the full Senate report to piece together information for their individual client’s cases. More importantly, to make the entire process more transparent for the American public and the world at large

Complicity of NGO Observers?

As an NGO Observer one wonders if one is complicit in the process. We are selected and approved by the U.S. Pentagon; transported to Guantanamo Bay (along with the press, prosecution and defense teams, and our military base escorts at of cost of nearly $90,000 each way) and housed at Camp Justice at taxpayer’s expense; and used by the U.S. Pentagon as a check mark in a box for transparency and guarantee of a fair trial. Although we are there to observe, analyze, and report back, it is difficult to know if our role really  works to ensure a fair and transparent process.

9-11 Case Schedule

Pre-trial motions commenced in the 9/11 case in early April 2012. The current anticipated start date for the trial is 2018.  The pace of justice moves slowly; it is clearly a frustration for all involved — the defense and prosecution teams, the victims, the American public, and the U.S. justice system. Further, it is difficult not to be cynical about the process when members of the defense teams, both civilian and military, confirm (almost casually) that they believe their phones and email accounts are monitored. Ironically, our best weapon against terrorism is to prove that our systems stand and function even when horrific events urge reasonable people to operate outside the law.

The Torture Report evidences that we have already failed on one level; it is imperative that we do not fail in the delivery of a fair and transparent judicial process. After talking with the defense teams, it is my observation that it is the passion and integrity of the members of the defense teams, both military and civilian, that are our best hope for the fair and transparent process.

I plan to continue my support of the Indiana University Robert H. McKinney School of Law Program in International Human Rights Law Military Commission Observation Project and the Guantanamo Bay Fair Trial Manual and to hope to return to Guantanamo Bay as an NGO Observer in the future to help them do their jobs by being the eyes and ears of the American public.

Post Script

The New York Times maintains a timeline detailing the detainee population at Guantanamo Bay. As of today (25 December 2014), there are still 132 detainees held on Guantanamo Bay.

(Posted by Catherine Lemmer)